Author: Jason Mazzone


My 2009 Judiciary Act

In four previous posts, I discussed proposals offered by a group of law professors for a Judiciary Act of 2009. The professors propose various changes to the structure and work of the Supreme Court. My first post on this proposed Judiciary Act is here. My second post is here. My third post is here. My fourth post is here

In this final post in the series, I present the change I argue for in the paper I have just posted to SSRN called When the Supreme Court is Not Supreme.

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2009 Judiciary Act: Part Four

This is my fourth post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here. My third post is here.

The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to justify absolute independence for Justices whose chief work is expressing and imposing on the public laws on topics of their choice.” Moreover, state supreme courts and lower federal courts have taken a cue from the Supreme Court and likewise delegate routine tasks so that they can write extended opinions on important issues.

The professors propose the creation of a Certiorari Division of the Supreme Court staffed, by rotation, by experienced appellate judges. The Certiorari Division would review petitions for certiorari and select 80-100 cases each year for the Justices. The Justices could reverse some grants of certiorari and also grant certiorari in additional cases but the Court would be required to decide a substantial number of the cases identified by the Certiorari Division.

I am in favor of altering the current process by which the Supreme Court’s docket is set. Law clerks’ reviewing arguments by parties as to why and why not review should be granted is less than an ideal way to set the Court’s tasks. I am also generally sympathetic to the professors’ reliance on experienced appellate judges. Those judges could bring a sophisticated understanding of the law and a (more) reliable sense of when the Supreme Court’s intervention is warranted.

Given that the creation of the Certiorari Division is likely to encounter resistance, I have a different proposal that is easier to implement and addresses many of the professors’ own concerns.

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2009 Judiciary Act: Part Three

This is my third post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here.

The professors’ third proposal is for Congress to specify that the Chief Justice be appointed to a term of seven years with the possibility of renewal. So as to ensure the position of Chief Justice is not limited to Justices currently on the Court, the term would automatically extend until the President has an opportunity to appoint a new Justice to the Court. The professors believe a term limit is desirable given the increased responsibilities of the Chief Justice.

The proposal revels something unexpected about our current procedures for choosing the Chief Justice.

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2009 Judiciary Act: Part Two

This is my second post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here.

The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also report as much to the Judicial Conference. If the Chief Justice is unable to perform his or her duties on the Court, the Associate Justices must report the disability to the Judicial Conference. Upon receiving a report, the Judicial Conference convenes the most Senior Judges of the Courts of Appeals. If those judges determine that a Justice is no longer capable of serving, it must report that to the House Judiciary Committee.

The professors’ proposal responds to a striking aspect of the Constitution: there is no specific provision for removing a judge who is disabled. Article III provides for a judge to continue to serve during “good behavior.” I understand that provision, though, to mirror the impeachment clause (“all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”). Disability would not, therefore, be an instance of bad behavior. Many state constitutions, by contrast, do provide for the removal of a judge on disability grounds.

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2009 Judiciary Act: Part One

A group of law professors has offered to Congress four proposals for a Judiciary Act of 2009 that would make some changes in the composition and duties of the Supreme Court. In a series of posts this week, I will address those four proposals and present also my own proposal for reform.

The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in the state courts, the professors propose that, in addition to filling in vacancies when a Justice retires or resign, the President should appoint one new Justice during the first session of Congress after each federal election. The nine most junior Justices would then sit to hear cases. The remaining Justices would be designated Senior Justices. A Senior Justice would fill in where an active Justice is unable to participate in a case. Senior Justices would also play a role in decisions to grant or deny certiorari.

Leaving aside the questions of whether the Court makes policy decisions and whether it is desirable for the Justices to be updated on contemporary mores, I generally agree with the goal of the proposal. I think turnover is healthy. Roberts and Alito have brought some welcome energy to the Court. Oral argument is more interesting nowadays with new voices weighing in (and with Roberts increasing the time available to lawyers to argue their cases).

The big issue here, as the professors recognize, is how to put this plan in action. Article III specifies that the Justices “shall hold their offices during good behavior.” The question, then, becomes whether a Senior Justice is still holding the office to which the justice was originally confirmed. David Stras and Ryan Scott have identified the relevant concerns in the context of lower federal judges taking senior status.

The professors have three possible ways to avoid a constitutional problem. One is to for the Court itself, rather than Congress, to decide which nine Justices hear a case. The second is to give a monetary bonus to Justices who retire early. A third is to make life unpleasant by restoring circuit riding.

I have a better fix.

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Another report on hyperparenting. The New York Times reports the emergence of children with such strongly instilled food concerns they are afraid to eat. Doctors have coined the term orthorexia for the phenomenon.

Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:

Child: “Mommy, I want a pretzel! I want a pretzel!”

Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”

Child: “I want a pretzel! I want a pretzel!”

Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”

Child: “I want a pretzel! I want a pretzel”

I don’t know whether the child received the pretzel. But whatever happened to “No, you’ll spoil your appetite”?


Imagine there’s no copyright/It’s easy if you’re the Supreme Court

I live near the Strawberry Fields memorial with the mosaic of the word “Imagine” that is in Central Park opposite the Dakota. Yoko Ono Lennon funded and maintains the memorial. Almost every day, somebody asks me for directions to the site.

Yoko Ono Lennon, along with Lennon’s sons Sean and Julian, vigorously protect their copyrights in John Lennon’s works. Most recently, the Lennons sued the producer of a movie about intelleigent design that included 15 seconds from the song Imagine. Judge Sidney Stein (S.D.N.Y.) ruled in Lennon v. Premise Media that the producer was likely to prevail on a fair use defense and he denied the Lennons a preliminary injunction.

One can only guess how the Lennons feel about Justice Alito reproducing the entire lyrics to Imagine in footnote 2 of his opinion for the Court today in Pleasant Grove City v. Summum.

If the Supreme Court were not a slow adapter, Alito might have attached an audio file.


Apologize to Chimps Too!

Today, publisher Rupert Murdoch apologized for the recent New York Post cartoon that some viewed as racially offensive in its attribution of Congress’ stimulus bill to a chimp. “Today I want to personally apologize to any reader who felt offended, and even insulted,” Murdoch, said. “I can assure you — without a doubt — that the only intent of that cartoon was to mock a badly written piece of legislation.”

Let’s not let chimps get stuck with a reputation for making bad laws.

As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated forms of communication. They adopt orphaned siblings. They use tools for a variety of purposes. They mourn death. They have phenomenal memories. They can learn to complete complex tasks. They have highly individualized personalities. They engage in diplomacy and other political behavior. They patrol the boundaries of their communities (and sometimes they engage in warfare with outsiders).

Chimp law works quite well.


The M Word

David Blankenhorn and Jonathan Rauch have an Op Ed in the New York Times on “A Reconciliation on Gay Marriage.” Blankenhorn has spoken out strongly against gay marriage. Jonathan Rauch has been in favor of it. They think they have struck a deal. Here is their proposal:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

The gist of the proposal is that same-sex couples could receive federal benefits, while religious entities would not be forced to recognize their unions. B & R note that the First Amendment likely means no church can be required to perform a same-sex union. Under the proposal they offer, a church auxiliary or charity also could not be forced to give spousal benefits to the partner of a gay employee; a faith-based nonprofit would not lose tax status by refusing to host a gay wedding ceremony.

The proposal is likely to generate a good deal of discussion and opposition on both sides. Marriage proponents will object to the seemingly broad exemption for religious groups; marriage opponents will object to any conferral of federal benefits on same-sex couples.

One aspect of the proposal, which might easily be overlooked, strikes me as fatal.

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